Shakespearean Soundscapes: Music – Voices – Noises – Silence

“To hear the rest untold.” Shakespeare’s Arbitration of the “right to remain silent”

by Felix Sprang

According to Hamlet and Christian thought, silence is the human default condition when leaving this world and preparing for the next.[1] This idea of silence as a pivotal state between life, death and life eternal reflects the ambivalence towards silence that prevails in Western thought. In the process of re-evaluating classical paradigms, the early modern period was particularly prone to reconcile the Ciceronian (rhetorical) view of silence as a mark of decorum with the Augustinian (theological) notion of silere and tacere as the foundation of Christian virtues.[2] Hamlet’s utterance “The rest is silence” certainly evokes this multi-layered process of reconciliation. It is underpinned by the contrast between his declared silence at the end and his playful verbosity throughout the play. As such Hamlet’s muteness echoes the ambiguous status of silence in early modern culture as defined by Christina Luckyj:

The widespread valorising of speech in the early modern period led to two divergent constructions of silence in mainstream (that is, masculinist) thought. On the one hand silence was frequently denounced or rejected as antisocial, barbarous or foolish; on the other silence was appropriated as a superior form of speech, or its necessary complement.[3]

The type of silent speech act that I will address in the following, the defendant’s decision to remain silent when faced with an accusation, is situated between the “two divergent constructions of silence” that Luckyj has identified. Principally regarded as foolish or rebellious behaviour, the connotations of silence grew increasingly positive in the Tudor and early Stuart years. This development is arguably a result of the increasingly vile practices employed by interrogators during the Reformation and the subsequent suppression of religious and political dissenters.[4] At a time when interrogators, particularly the members of the Privy Council with its notorious Star Chamber, regularly resorted to torture and physical punishment in order to obtain confessions, the accused who remained silent during the interrogation were prone to become martyrs. Thus silence gradually evolved from an apparent mark of guilt to a culturally encoded sign of honesty and righteousness. When we look at the plays by Shakespeare and his contemporaries, there are indeed many scenes that mirror this slow revolution. However, the negotiations of silence are not always confined to the court room and have thus escaped the eyes of legal historians with an interest in Shakespeare.

Before discussing legal matters on the basis of Shakespeare’s plays it is essential to issue a caveat: with the following I will not contribute to the debate whether Shakespeare’s knowledge of the law was exceptional for a playwright who, as far as we know, had not been trained at the Inns of Court, a controversy sparked by Lord John Campbell’s Shakespeare’s Legal Acquirements in the year 1859.[5] Instead, I should like to follow Constance Jordan’s and Karen Cunningham’s ‘soft approach’ arguing that Shakespeare’s plays reflect the reciprocal process of how legal language and legal procedures contributed to the construction of social norms and realities and how these norms in turn informed legal practice.[6]

Indeed, legal issues connected with silence are clearly embedded in more general evaluations of muteness that involve issues of social class, gender and identity.[7] Two examples should suffice to point to the complex web of norms and values that consolidates early modern notions of silence: banishment as “speechless death” in Richard II and Isabella’s refusal and/or incapacity to acknowledge the Duke’s proposal with words in Measure for Measure. In order to do justice to this complex web, it is mandatory to sheer off from the stricter legal context and to cast the net a little wider. Focussing on scenes from Coriolanus, Pericles and The Winter’s Tale, I will address how social interaction in Shakespeare’s late plays reflects and informs the assessment of silence in the judiciary. I will demonstrate that the “right to remain silent” was forged and negotiated on stage long before it became manifest in the English Common Law during the 1640s. Finally, the investigation of legal repercussions in Shakespeare’s plays will shed a light on how creatively the early modern period combined Stoic and Augustinian notions of silence thus creatively mingling moral, legal and philosophical conceptions of “the right to remain silent”.

Before turning to Shakespeare’s late plays, I should like to circumscribe the legal context by pointing to the plot and themes discussed in Sir Thomas More (1596), a play that has survived in manuscript form and appears to be a collaborative endeavour mainly executed by Anthony Munday with the help of Henry Chettle and with later alterations by Shakespeare, Heywood and Dekker.[8] The protagonist Thomas More, marked by his wit and wisdom as well as his verbosity, is arrested “in the king’s name of high treason” (4.4.158) for refusing to subscribe to the Act of Supremacy and thus accepting Henry VIII as the head of the English Church. Interestingly enough, the play omits the year that More spent in the Tower and passes over the interrogations and the final trial. Throughout the last two acts, however, More reiterates his reluctance to cooperate with the judges and mocks the accusation and apprehension as a staged play:

Shrewsbury: My lord, ‘twere good you’d publish to the world Your great offence unto his majesty.

More: My lord, I’ll bequeath this legacy to the hangman, and do it instantly (gives him his gown). I confess his majesty hath been ever good to me, and my offence to his highness makes me of a state pleader a stage player (though I am old, and have a bad voice) to act this last scene of my tragedy. […] (5.4.66-72)

Documented evidence suggests that the historical character More was convicted because the solicitor-general, Richard Rich, swore that More had openly renounced the king’s authority during one of their private conversations.[9] According to the documents that have survived More decided to remain silent on why he refused to subscribe to the articles presented to him and explained, “if I should open and disclose the causes why, I should therewith but further exasperate his Highness, which I would in no wise do […].”[10] Evidently, More chose to remain silent because he knew that his defence could be easily turned against him. Ironically, the play corroborates More’s documented behaviour by omitting the trial scene and thus testifies that remaining silent was not an option for the defendant.

Shakespeare, who certainly knew the play, slightly altered the perspective when he and Fletcher wrote their account of the reign of Henry VIII. In the play All Is True or The Famous History of the Life of King Henry the Eight (since the 1623 Folio) the trials are an essential part of the plot and rendered as dramatic dialogues. It is remarkable, however, that while the trials involving Queen Katherine, Cardinal Wolsey and Archbishop Cranmer are all enacted on stage, Buckingham’s trial is merely reported. Buckingham’s apprehension, however, is indicative of the trial and his words foreshadow the course of the interrogation that will inevitably lead to his execution:

Serjeant: Sir [To Buckingham] My lord the Duke of Buckingham and Earl Of Hereford, Stafford, and Northampton. I Arrest thee of high treason in the name Of our most sovereign King.

Buckingham: [ToNorfolk] Lo you, my lord, The net has fall’n upon me. I shall perish Under device and practice. […] It will help me nothing To plead mine innocence, for that dye is on me Which makes my whit’st part black. […] (1.1.198-209)[11]

Buckingham’s assessment that “[i]t will help [him] nothing to plead [his] innocence” is reinforced by presenting Buckingham as a victim of slander:

Shakespeare emphasizes throughout that the evidence against Buckingham consists entirely of reported words: ‘words of sovereignty’, ‘the duke said’, ‘certain words / Spoke by a holy monk’, ‘says he’, ‘what he spoke / My chaplain to no living creature but / To me should utter’.[12]

And although the trial is not enacted, a character named First Gentleman explains in act 2, scene 1 that Buckingham was tried at Westminster with the King’s attorney presiding over the case.[13] Even if the text does not explicitly state the proceedings, these parameters would have sufficed to inform the audience that Buckingham was interrogated by the Star Chamber. The Star Chamber, presumably named after the painted ceiling of the room at Westminster Hall where the Privy Counsellors and common law judges heard high treason and political libel cases, was renowned in Shakespeare’s time for its pitilessness.[14] Installed by Henry VII in 1487, the Star Chamber became a political instrument to silence opponents under Henry VIII – and the play All Is True, arguably, depicts exactly this development. In Shakespeare’s play Buckingham has little faith in a fair trial and is immediately resigned to the fact that he “shall perish / Under device and practice.” The audience would have subscribed to Buckingham’s notion. They would have been aware that the Star Chamber had grown more powerful under James I. In fact, by the end of Elizabeth’s reign the name had already become a synonym for the misuse and abuse of power by the Monarch and the Privy Council. As Star Chamber sessions were closed to the public, it was not known exactly how the Council conducted their interrogations.[15] But it was generally known that at the centre of the trials was the oath ex officio, an oath introduced to canon law in the 13th century. Without a formal accusation, the defendant had to swear an oath that he would tell the truth in the ensuing interrogation. The refusal to swear the oath as well as the refusal to answer the questions posed by the king’s attorney was taken as proof that the defendant was guilty.[16]

The most prominent case that highlighted the abuse of the oath ex officio was held in 1532 when John Lambert had to defend himself against the accusation of heresy. He was confronted with a list of 45 articles and was pressed to respond to them. Having patiently listened to the long list, he refers to the first article questioning him “whether [he] was suspect or infamed of heresy” and makes it quite clear that he refuses to reply. Instead he states boldly:

If therfore at any season suche infamy was put upon me, I am glad that I have so litle regarded the same, that nowe I have forgotten it. And though I did remember any suche, yet were I more then twyse a foole to shewe you thereof: for it is wrytten in your owne lawe, Nemo tenetur prodere seipsum. But this I ensure you I was never so charged with suspicion or infamy of this crime, that I was therfore ever convented and reproved afore any iudge.[17]

Lambert was found guilty and executed in 1537 despite his complaint but his objections to the legal practice fell on fertile ground in the latter half of the century. The detailed account of his conduct in court, recorded in John Foxe’s Acts and Monuments - printed in 1563 and one of the two main sources for Shakespeare’s play - certainly elevated John Lambert as a martyr. Moreover, the account questioned the legitimacy of the prevailing legal practice. With Lambert, the notion of the nemo tenetur-principle, a principle that is derived from the Talmud and had no corresponding tenet in English common law, became increasingly popular in England.[18] Although neither statutory law, based on the proclamations by the Crown or Acts of Parliament, nor common law, based on custom, recognised a defendant’s “right to remain silent”, lawyers and prosecutors in the latter half of the 16th century were increasingly prone to subscribe to the conviction that “no man has to accuse himself.” But it took yet another three generations until 1641 before the “right to remain silent” became a governing principle in the English judiciary, again as the result of a prominent case. In 1637 John Lilburne, a printer-publisher, was arrested and brought before the Star Chamber on suspicion that he had imported and circulated heretic books from the Low Countries. Without formal charges brought against him he was interrogated by the Privy Council. Resorting to a remarkable rhetoric, he denied to cooperate with the tribunal:[19]

And of any other matter that you have to accuse me of, I know it is warrantable by the law of God, and I think by the law of the land, that I may stand on my just defence, and not to answer your intergatorie [sic]; and that my accuser ought to be brought face to face, to justifie what they accuse me of. And this is all the answer that for the present I am willing to make: And if you aske me of any more things, I shall answer you with silence.[20]

I should like to argue that Shakespeare’s plays contributed significantly to the debate that finally resulted in a defendant’s right to remain silent. Let us return to the play All Is True: Buckingham anticipates the ordeal of being interrogated by the Star Chamber and foresees his end. Although Buckingham’s fall sheds a negative light on the legal procedures, Shakespeare was careful not to criticise the standard practice of the Star Chamber too conspicuously.[21] At closer inspection, however, several of his plays discuss the Star Chamber’s standard practice of forcing defendants to answer incriminating questions under oath. These arbitrations of the right to remain silent are not confined to the numerous trial scenes in Shakespeare’s plays; the issue is raised in a number of scenes that are set outside the court room. Within the scope of this statement, I should like to focus on key scenes from Coriolanus, Pericles and The Winter’s Tale in order to explore Shakespeare’s arbitration of the legal issue.

Coriolanus (1608), Shakespeare’s last Roman play, can inform us about Shakespeare’s point of departure with respect to the debate. With the character Coriolanus, Shakespeare creatively explores the nemo tenetur-principle: Coriolanus doesn’t have to defend himself, instead he is asked to report on his praiseworthy deeds. The protagonist is aware that the Romans want to make him a consul in the light of his victory over the Volces. When asked to adhere to the customary ritual of showing his wounds in the marketplace and reporting how he received them, Coriolanus refuses to speak for himself[22]:

Menenius: It then remains That you speak to the people.

Coriolanus: I do beseech you, Let me o’erleap that custom, for I cannot Put on the gown, stand naked, and entreat them For my wounds’ sake to give their suffrage. Please you that I may pass this doing. (2.2.131-136)

Earlier in that scene, Coriolanus had to win the Senators’ support – again by giving an account of his deeds. Questioned at the Capitol by the Senators who are keen to know “what [he has] nobly done”, he prefers to remain silent:

First Senator: Sit, Coriolanus; never shame to hear What you have nobly done.

Coriolanus: Your honour’s pardon: I had rather have my wounds to heal again Than hear say how I got them.

Brutus: Sir, I hope My words disbench’d you not.

Coriolanus: No, sir: yet oft When blows have made me stay, I fled from words. You soothed not, therefore hurt not; but your people, I love them as they weigh –

Menenius: Pray now, sit down.

Coriolanus: I had rather have one scratch my head i’ th’ sun When the alarum were struck than idly sit To hear my nothings monster’d. Exit Coriolanus (2.2.63-73)

Coriolanus refuses to be boastful when presented to the Senators. Coriolanus’ refusal is conventionally, and quite reasonably, interpreted as a sign of his self-control, his arrogance or his modesty, a virtue conspicuously at odds with the heroic conception of virtú but in keeping with the Judeo-Christian ideal of temperance. Within the legal context that I am exploring, it is also possible to read Coriolanus’ refusal as a positive statement to support a defendant’s right to remain silent. Coriolanus is simply not willing to testify because he holds the opinion that one should not be forced to report on and judge one’s own actions.[23]

Conversely, Iago’s stoic statement “Demand me nothing. What you know, you know. / From this time forth I never will speak a word.” (5.2.309-310) is in line with the nemo tenetur-principle – but Iago’s refusal to accuse himself accentuates the double-edged nature of a defendant’s right to remain silent.[24] Here, it is not the sympathetic and heroic character, the martyr, who claims his right to remain silent. Instead, the audience witnesses a murderer and machinator who refuses to adhere to the conventions of poetic justice and insists that Lodovico, Cassio, Graziano and Othello bring forward evidence and proof of his scheming. Iago’s silence is deeply disturbing not only because it demonstrates his indifference but foremost because it immediately spawns the ferocity and inhumanity of the law: Graziano’s reply “Torments will ope your lips” (312) as well as Lodovico’s sadistic comment “For this slave, / If there be any cunning cruelty / That can torment him much and hold him long, / It shall be his” (341-344) obliterate the differences between the Venetian noblemen and the “[m]ost heathenish and most gross [villain]” (321).

When we turn to Shakespeare’s late plays, we encounter arbitrations of the nemo tenetur-principle in the more conventional form, i.e. with the example of a sympathetic character. One of the most poignant variations on the theme is certainly found in Pericles when the protagonist, residing at the court of Antiochus, must either solve a riddle to win the king’s daughter or lose his life. The parallel with the investigations by the Star Chamber is perhaps not too obvious at first sight – but Pericles’ situation is indeed comparable with John Lambert’s dilemma. Pericles finds himself in the situation of a defendant under the oath ex officio. He has agreed to expound the riddle without knowing it. Failing to solve it, including the refusal to speak, will result in the death penalty. Since the riddle encodes the incestuous relationship between Antiochus and his daughter, solving it will also proof hazardous. The king Antiochus, not unlike the King’s Attorney in the Star Chamber, oversees the task and presses Pericles to solve the riddle: “Your time’s expired. / Either expound now, or receive your sentence.” (1.1.132-133). Before entering the unfair game, Pericles muses on his chances to escape unharmed:

Pericles: […] Then it is thus: the passions of the mind, That have their first conception by misdread, Have after-nourishment and life by care; And what was first but fear what might be done, Grows elder now and cares it be not done. And so with me: the great Antiochus, ’Gainst whom I am too little to contend, Since he’s so great can make his will his act, Will think me speaking, though I swear to silence; Nor boots it me to say I honour him. If he suspect I may dishonour him: And what may make him blush in being known, He’ll stop the course by which it might be known; (1.2.12-24)

Pericles’ resolve to “swear to silence” certainly presents a particular aspect of the nemo tenetur-principle. In legal terms he refuses to give evidence of the king’s incestuous relationship. As the interpreter of the riddle, however, he is in the position of the defendant facing a no-win situation: solving the riddle, not solving it and remaining silent will all lead to his execution.

The Winter’s Tale takes us back to the stricter legal context. Hermione is accused of high treason, a charge that was dealt with exclusively by the Star Chamber.[25] Two charges are laid against her: first, that she has committed adultery with Polixenes, King of Bohemia; second, that she has conspired with Camillo to murder her husband, King Leontes. It can be read as a criticism of the standard legal procedures, that the officer in Shakespeare’s play can only provide circumstantial evidence at the trial to support the accusation. Despite this lack of evidence, Hermione is charged with assisting Polixenes and Camillo to escape:

Leontes: Read the indictment.

Officer: Hermione, queen to the worthy Leontes, king of Sicilia, thou art here accused and arraigned of high treason, in committing adultery with Polixenes, king of Bohemia, and conspiring with Camillo to take away the life of our sovereign lord the king, thy royal husband: the pretence whereof being by circumstances partly laid open, thou, Hermione, contrary to the faith and allegiance of a true subject, didst counsel and aid them, for their better safety, to fly away by night.

Hermione: Since what I am to say, must be but that Which contradicts my accusation, and The testimony on my part, no other But what comes from myself, it shall scarce boot me To say ‘not guilty’: mine integrity Being counted falsehood, shall, as I express it, Be so received. […] (3.2.11-27)

Although Hermione defends herself with all the rhetorical powers at her disposal in the trial scene, Shakespeare has made her the most subversive representative of the nemo tenetur-principle. When Leontes simply disregards the Oracle’s verdict as “mere falsehood” and insists that the trial should proceed (and when the servant reports that Mamillius, Hermione’s son is dead) Hermione faints and, according to Paulina, dies. Hermione’s silence of the dead, reminiscent of Hamlet’s “the rest is silence”, is certainly the most poignant variation of Shakespeare’s arbitration of the right to remain silent. Hermione is vindicated by her silence. When all her words did not suffice to proof her innocence, her silence eventually achieves just that.

[4] For the practices of persecution cf. the papers by David Loewenstein, Carrie Euler, Christopher Marsh and Peter Lake in David Loewenstein and John Marshall (eds.) Heresy, Literature and Politics in Early Modern English Culture (Cambridge: Cambridge University Press, 2006).

[5] For a detailed discussion cf. Owen Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972), 176-192, R. J. Schoeck, “Shakespeare and the Law: An Overview”, in W. R. Elton and John M. Mucciolo (eds.), Where Are We Now in Shakespearean Studies (Aldershot: Ashgate, 1999), 219-39, B. J. Sokol and Mary Sokol, Shakespeare’s Legal Language: A Dictionary (London: Athlone Press, 2000) and Mark Andre Alexander, “Shakespeare’s Knowledge of Law: A Journey through the History of the Argument”, Oxfordian: The Annual Journal of the Shakespeare Oxford Society 4 (2001), 51-119.

[7] The interdependency of silence, social class, gender and nationality can be found in Homer’s epic poems as well as in texts by the Pre-Socratics and is deeply rooted in Western culture. Cf. Silvia Montiglio, Silence in the Land of Logos (Princeton: Princeton University Press, 2000). For a discussion of the motif in Shakespeare’s plays cf. David Schalkwyk, “‘She never told her love’: Embodiment, Textuality and Silence in Shakespeare’s Sonnets and Plays”, ShakespeareQuarterly 45 (1994), 381–407.

[8] Cf. Anthony Munday, Sir Thomas More, ed. by Vittorio Gabrieli and Giorgio Melchiori, The Revels Plays. (Manchester: Manchester University Press, 1990). All subsequent quotations from this play are taken from this edition.

[10] Thomas More in a letter to his daughter Margaret Roper commenting on his first interrogation at Lambeth Palace on April 17, 1534. Quoted from: Gerald B. Wegemer and Stephen W. Smith (eds.), A Thomas More Sourcebook (Washington, DC: Catholic University of America Press, 2004), 313.

[13] Due to the unexpectedness of the allegations and the swiftness of the trial, legal historians have taken an interest in the circumstances. Cf. Barbara Harris, “The Trial of the Third Duke of Buckingham – A Revisionist View”, The American Journal of Legal History 20, 1 (1976), 15-26 and Mortimer Levine, “The Fall of Edward, Duke of Buckingham”, in Arhur J. Slavin (ed.) Tudor Men and Institutions (Lousiana: Louisiana State University Press, 1972).

[15] Arguably, Shakespeare could not have dramatized the scene even if he had wanted to because information on the court’s procedures was lacking. Shakespeare presumably used Foxe’s Book ofMartyrs and Holinshed’s Chronicles as his sources. Only after Shakespeare’s death several treatises appeared in print that reported on the practice of the Star Chamber: Richard Crompton, Star-Chamber cases shewing what causes properly belong to the cognizance of that court : collected for the most part out of Mr. Crompton his booke, entituled, The jurisdiction of divers courts (London: I.O. for Iohn Grove, 1630) and Anon., The Star-chamber epitomized, or, A dialogue betweene Inquisition, a newes smeller, and Christopher Cob-web, a keeper of the records for the Star-Chamber, as they met at the office in Grayes-Inne (London: [s.n.], 1641).

[16] Elizabeth I disempowered the church tribunals by abolishing the oath ex officio in 1558 but reserved it for the Star Chamber, investigating charges of high treason and bound by common law, and the Court of High Commission, investigating heresy and bound by canon law. Elizabeth I. “An Act restoring to the Crown the ancient jurisdiction over the State ecclesiastical and spiritual, and abolishing all foreign power repugnant to the same.” 1558

[17] John Foxe, Acts and Monuments [The Book of Martyrs] (London: John Day, 1563), III, 536.

[18] For a detailed account of the historical development cf. Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (New York: Oxford University Press, 1968), 43-108 and 266-300.

[19] While in prison Lilburne wrote several pamphlets including the Anatomy of the Lords’ Tyranny (1646), Regal Tyranny Discovered (1647), The Oppressed Man’s Opinions Declared (1647) and London’s Liberty in Chains Discovered (1648).

[20] John Lilburne, The Christian mans triall: or, A true relation of the first apprehension and severall examinations of Iohn Lilburne (London: William Larnar, 1641), 3.

[21] There is only one explicit reference to the Star Chamber in all of his plays. In the opening lines of MW Justice Shallow, a foolish and incompetent Justice of the Peace, complains that he has been wronged by Falstaff: “Sir Hugh, persuade me not. I will make a Star Chamber matter of it. If he were twenty Sir John Falstaffs, he shall not abuse Robert Shallow, Esquire.” (1.1.1-3). There is a word echo of Star Chamber with “Council” in lines 29, 30 and 99. The irony is heightened by the misunderstanding of Sir Hugh Evans, a Welsh parson, who believes that Shallow refers to the Church Council rather than the King’s Council. Cf. Greenblatt (1997), 1235, footnote 8.

[22] For an early modern audience the twenty-seven wounds that Coriolanus has suffered certainly evoked the conceptional realm of the martyr.

[23] This stance is explored, as so often in Shakespeare, with a witty dialogue by the common people:

First Citizen: Once, if he do require our voices, we ought not to deny him.

Second Citizen: We may, sir, if we will.

Third Citizen: We have power in ourselves to do it, but it is a power that we have no power to do. For if he show us his wounds and tell us his deeds, we are to put our tongues into those wounds and speak for them; so if he tell us his noble deeds, we must also tell him our noble acceptance of them. (2.3.1-8)

[24] For an analysis of Iago’s resolve to remain silent that rests on the assumption that “Iago embodies the mystery of the evil will, an enigma which Shakespeare strove to realize, not to analyze”. Daniel Stempel, “The Silence of Iago”, PMLA 84, 2 (1969), 252-263. 252.

[25] For an analysis of the scene along the lines of gender studies cf. A. E. B. Coldiron, “’Tis Rigor and Not Law’: Trials of Women as Trials of Patriarchy in The Winter’s Tale”, Renaissance Papers (2004), 29-68.